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Andrew Bergh
Andrew Bergh

May 18, 2000

Siblings battle over mom's wrongful death settlement

By ANDREW BERGH

Sibling rivalry can be a positive thing.

But when a parent dies with an estate to be split among the kids, you sometimes have World War III on your hands. A recent Ohio case – Estate of Thomas – provides an all-too-fitting example.

Our account about sibling discord dates back to March 16, 1979.

That’s when Elaine Mae Thomas prepared her last will and testament. Playing no favorites, the Summit County resident said her estate should be divided equally between her two adult children, Joan Roberts and Charles Biley.

Fast forward to 1991, which is when Elaine got a double dose of bad news. First, her doctors said she had lung cancer. As if that bombshell wasn’t enough, Elaine soon learned that her medical team had lost a lung biopsy taken 18 months earlier when she was treated for pneumonia. During that period, her undiagnosed and untreated tumor grew from the size of a pea to the size of a peach.

There was a chance, of course, that Elaine’s cancer would have been fatal even if diagnosed sooner by her doctors. That, however, didn’t stop Elaine from hiring an attorney to explore a potential malpractice claim. But when Elaine eventually succumbed to her disease in late May 1992, a lawsuit was still up in the air.

Within a week of his mother’s death, Charles was appointed executor of her estate. Since the estate was then worth over $58,000, Joan and Charles stood to receive about $29,000 apiece.

But brother and sister soon had a falling out. The reason? They vehemently disagreed about whether a wrongful death claim should be pursued on behalf of mom’s estate.

Charles was the sibling who didn’t want to sue.

So although the statute of limitations was rapidly approaching, the brother did next to nothing for almost five months. Realizing she better get involved to preserve the estate’s claim, Joan successfully asked the court to remove Charles as executor and appoint her in his place. She then dodged a bullet by filing a wrongful death suit on the last available day.

For the next four years, though, it was hurry-up-and-wait. That’s because the wrongful death claim was dismissed early on, thus requiring successive appeals by the estate. The defendants initially prevailed by showing that even if her cancer had been diagnosed in a timely manner, Elaine’s chance of recovery was still less than 50 percent.

But in 1996, the estate received good news from the Ohio Supreme Court.

The justices ruled that although Elaine’s prognosis would have been poor in any event, her estate should still recover damages for the “lost chance of survival” caused by the doctors’ negligence. Shortly thereafter, the attorney retained by Joan settled the wrongful death claim for $100,000.

After deducting litigation expenses, the net settlement from the wrongful death suit was another $59,000, which roughly doubled the value of Elaine’s estate to about $117,000. This presumably made Charles happy, as he stood to fetch an extra $29,500 as a result of the lawsuit.

But Joan had different ideas.

At a hearing in November 1998, the sister argued for a larger share since she was the one who aggressively pursued the wrongful death claim.

The court agreed, awarding Joan 60 percent of the estate. On top of that, Joan received another $5,000 in “fiduciary fees” for her services as executor. The net result? Sister got about $72,000, while brother got about $45,000.

A strong case could be made that Charles had reaped a $16,000 windfall, as that’s the additional amount he stood to receive from the lawsuit he never wanted. But the 60-40 split must’ve stuck in his craw, as Charles, suddenly singing a different tune about litigation, decided to appeal.

To cut to the quick, last month an Ohio appeals court sided with Joan.

It was true, said the court, that both daughter and son were close to their mother, and that the siblings had suffered equally as far as mental anguish and grief were concerned.

But in a 3-0 ruling, the court emphasized that without Joan’s perseverance, the wrongful death settlement never would have occurred. It was therefore reasonable, said the court, to recognize those efforts by giving Joan a slightly larger share of the estate.

Charles didn’t lose across the board, however, as the court reversed the $5,000 award to Joan. This meant the final distribution numbers were approximately $69,500 for Joan, and $47,500 for Charles.

Which in turn means there are likely 22,000 reasons why two siblings in Ohio aren’t speaking to each other right now.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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